Wheeler, Robert

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North Dakota Law Review Volume 40 Number 3 Article 10 1964 Armed Services - Deferments and Exemptions - Conscientious Objectors - Constitutionality of Supreme Being Requirement Robert Wheeler Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Wheeler, Robert (1964) "Armed Services - Deferments and Exemptions - Conscientious Objectors - Constitutionality of Supreme Being Requirement," North Dakota Law Review: Vol. 40 : No. 3 , Article 10. Available at: https://commons.und.edu/ndlr/vol40/iss3/10 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. NORTH DAKOTA LAW REVIEWson for refusing to require a relationship between them. 4This is an attempt to prevent a wrongdoer from havingactual immunity merely because the injured party is unableto show that there was a measurable injury 15Under the view of North Dakota, and the great weightof authority, it is possible for the defendant to escape liabil-ity when the plaintiff cannot prove an actual monetary loss.It is submitted that this is-not the better rule to followDALE W MOENCHARMED SERVICES-DEFERMENTS AND EXEMPTIONS-CONSCIENTIOUS OBJECTORS-C O N S T I T UTI O N A L I TY OF"SUPREME BEING" REQUIREMENT-Convicted of failing tosubmit to induction in the armed forces,1 the defendantappealed, asserting he was improperly denied exemption asa conscientious objector because his objections were notdependent upon a belief in relation to a "Supreme Being",as required by statute. 2  The defendant had declined toassert a belief in a deity, but convinced authorities he helda sincere religious faith in a purely ethical creed that pro-hibited him from participating in any form of war Revers-ing the trial court, the United States Court of Appeals, 2 Cir.,held, that in the light of recent decisions by the SupremeCourt, a line such as is drawn by the "Supreme Being" re-quirement between different forms of religious expression can-14. See cases cited in note 8 supra.15. See Reynolds v. Pegler, supra note 8, at 38, in which the Court said."Punitive or exemplary damages are intended to act as a deterrent upon thelibeler so that he will not repeat the offense, and to serve as a warning toothers. Punitive damages are allowed on the ground of public policy andnot because the plaintiff has suffered any monetary damages for which he isentitled to reimbursement; the award goes to him simply because it is assessedin his particular suit. The damages may be considered expressive of the com-munity attitude towards one who willfully and wantonly causes hurt or injuryto another."1. United States v. Seeger, 216 F Supp. 516 (S.D.N.Y. 1963).2. Universal Military Training and Service Act, 62 STAT. 604 (1948), 50U.S.C. App. § 456(j) (1958). The act provides: "Nothing contained in this titleshall be construed to require any person to be subject to combatant training andservice who, by reason of religious training and belief, is conscientiously op-posed to participation in war in any form. Religious training and belief in thisconnection means an individual's belief in a relation to a Supreme Being in-volving duties superior to those arising from any human relation, but does notinclude essentially political, sociological, or philosophical views or a merely per-sonal moral code. "336 [VOL. 40RECENT CASESnot be permitted to stand consistently with the First Amend-ment or the Due Process Clause of the Fifth Amendment.United States v Seeger, 326 F.2d 846 (2d Cir 1964), cert.granted, 84 Sup. Ct. 1222 (1964) (No. 936)In drafting the Selective Training and Service Act of 1940,8Congress liberalized the Selective Service Act of 1917, whichgranted exemption only to members of a well organizedreligious sect or organization with an established history ofpacifism.4 The 1940 act read: "Nothing contained in thisact shall be construed to require any person to be subjectto combatant training who, by reason of religious train-ing and belief, is conscientiously opposed to participation inwar in any form. 5Based on dictum from a prior decision, 6 the clause wasinterpreted to mean that opposition to war on humanitarianand philosophical grounds was a "religious" belief.7 Thisinterpretation was rejected in 1946,8 leaving a conflict whichCongress resolved in the Universal Military Training andService Act of 1948 by again basing exemption for consci-entious objectors on religious training and belief, but makingit dependent upon an individual's belief in relation to a"Supreme Being" 9 The "Supreme Being" requirement wasupheld against constitutional challenges on several occasions. 10The Court in the instant case was provided with a foun-dation for its broadened definition of the word "religion"by a 1961 ruling of the Supreme Court, in which the courtheld, that a provision in the Maryland Constitution requiringa declaration of belief in the existence of God in order foran individual to qualify for the office of notary public in-3. Ch. 720, § 5(g), 54 STAT. 889 (1940).4. Ch. 15, § 4, 40 STAT. 78 (1917).5. Supra note 3.6. United States v. Kauten, 133 F.2d 703, 708 (2d Cir. 1943).7. United States ex rel. Phillips v. Downer, 135 F.2d 521 (2d Cir. 1943),United States ex rel. Reel v. Badt, 141 F.2d 845 (2d Cir. 1944).8. Berman v. United States, 156 F.2d 377 (9th Cir. 1946), cert. denied, 329U.S. 795 (1946).9. Supra note 2.10. Clark v. United States, 236 F.2d 13 (9th Cir. 1956), cert. densed, 352 U.S.882 (1956) , United States v. Bendick, 220 F.2d 249 (2d Cir. 1955) , George v.United States, 196 F.2d 445 (9th Cir. 1952), cert. denwed, 344 U.S. 843 (1952).1964]338 NORTH DAKOTA LAW REVIEW [VOL. 40vaded the defendant's freedom of belief and religion. 1  Ineffect, the Supreme Court ruled that any governmentalattempt to define the word "religion", as that word wasused in the First Amendment, would be unconstitutional ifthe definition excluded any philosophical, sociological, poli-tical or humanitarian belief which even the smallest min-ority could call a "religious" belief. 1 2 Also, in deciding taxcases, at least two courts have construed statutes providingtax exemptions for "religious" organizations to include groupspossessing no theistic beliefs.1 3Viewing the problem from a different vantage point, itwould seem that it is more difficult to exclude activities, nor-mally considered to be religious, from the meaning of thatterm, than it is to include beliefs not normally consideredto be religious in nature. 4The instant case extends the position the Court took inUnited States v Jakobson,15 which is factually similar andwhich is also before the Supreme Court for review WhileJakobson recognized an ultimate creator of all existence,which he termed "Godness," his concept of religion did notfit within that of examining Selective Service officials orthe trial court. The appellate court dismissed the indict-ment, noting that if the defendant were sincere "we rule itan erroneous construction of the statute to conclude Jakob-son's beliefs fell outside its definition of religion."' 16The Court is unwilling to draw a distinction between11. Torcaso v. Watkins, 367 U.S. 488 (1961). The Court stated "Neither[state nor federal government] can constitutionally pass laws or impose re-quirements which aid all religions as against nonbelivers, and neither can aidthose religions based on a belief in the existence of God as against those religionsfounded on different beliefs."12. Conklin, Conscientious Objector Provisions A View in the Light ofTorcaso v. Watkins, 51 GEO. L.J. 252, 253 (1962-63).13. Washington Ethical Soc'y v. District of Columbia, 249 F.2d 127 (D.C.Cir. 1957) Fellowship of Humanity v. County of Alemeda, 315 P.2d 394 (1957).The Court in the latter case, at p. 406, stated "Thus the only inquiry in sucha case is the objective one of whether or not the belief occupies the same placein the lives of its holders that the orthodox beliefs occupy in the lives of be-lieving majorities, and whether a given group that claims the exemption con-ducts itself the way groups conceded to be religious conduct themselves. Thecontent of the belief, under such test, is not a matter of governmental concern."14. See Abington School Dist. v. Schempp, 374 U.S. 203 (1963).15. United States V. Jakobson, 325 F.2d 409 (2d Cir. 1963), cert. granted, 84Sup. Ct. 1222 (1964) (No. 937).16. Id. at 412.RECENT CASESJakobson's devotion to a mystical force of "Godness" anddefendant Seeger's compulsion to follow the paths of"goodness.' 7 Whereas, in the Jakobson case the Courtbroadened its definition of "religion" so as to bring thedefendant's views within the meaning of the statute, inthe latest case the Court extended its definition so as tomake belief in a Supreme Being inapplicable as a test forconscientious objectors.One can envision a very real dilemma as a result ofthe Court's decision. A virtual Pandora's Box may be opento conscientious objectors-real or pseudo-whose "religious"beliefs will exempt them from performance of duty to theircountry If the Court's decision stands, where can Congressdraw the line? The "Supreme Being" test, though objec-tionable, did provide a comparatively simple basis for de-fining "religion." In view of the seemingly insolublequestion now posed, Congress may eventually have no choicebut to abolish the conscientious objector provision altogetherROBERT WHEELER17. United States v. Seeger, 326 F.2d 846, 853 (2d Cir. 1964).1964]

Armed Services - Deferments and Exemptions - Conscientious Objectors - Constitutionality of Supreme Being Requirement

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Armed Services - Deferments and Exemptions - Conscientious Objectors - Constitutionality of Supreme Being Requirement

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